In two decisions this month, appellate courts reversed Family Court orders and dismissed petitions for grandparent visitation.

In Pinsky v. Botnick, the petitioner was the paternal grandmother. Her son had died at the age of 35, survived by his widow and 4 children, then ages 9, 7, 5, and 3. Her Family Court petition for visitation was filed approximately six weeks after her son’s death.

At the hearing, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. However, according to the mother, the children were hysterical about the court proceeding, fearful that the grandmother would take them away from their mother. The attorney for the children informed the Family Court that the children did not wish to see their grandparents.

Nassau County Family Court J.H.O. (and former Judge) Elaine Jackson Stack denied the mother’s application to appoint a neutral forensic evaluator. The mother retained Peter J. Favaro, Ph.D., whose report was received in evidence. Dr. Favaro reported that the children were experiencing a “complicated bereavement”: the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. Dr. Favaro concluded that forcing interaction between the children and grandparents would only strengthen those fears.

In her March 22, 2012 order, J.H.O. Stack granted awarded the grandmother three hours of visitation with the children every other Sunday, and daily e-mails between the grandmother and the children until visitation commenced. J.H.O. Stack also directed the mother, the children, and the grandmother to engage in therapy.

In May 2012, the mother moved to delay the commencement of visitation until October 14, 2012. In her supporting affidavit, the mother stated that prior to the date visitation was scheduled to commence, the grandmother began attending the children’s after-school and extracurricular activities. The mother indicated that one daughter did not go to the bathroom at school because the grandmother was staring at her through the window next to the bathroom. The child felt “stalked.” In addition, the mother asserted that the grandmother had contacted school officials and the children’s coaches, demanding inclusion on mailing lists relating to the children’s schedules and activities. Two of the children refused to attend their little league baseball games. It was alleged that the grandmother and her husband showed up at the kindergarten graduation ceremony of one of the children and, as a result, a security guard escorted the mother and the child to a classroom where they remained during the party.

In an order dated July 25, 2012, the Family Court denied the mother’s motion to delay visitation.

The Appellate Division, Second Department, in its April 10, 2013 decision, reversed the March order (mooting the second order).

The Second Department noted that a court considering grandparent visitation must undertake a two-part inquiry under Domestic Relations Law § 72(1). First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or upon equitable circumstances. If that first test is met, then the court must determine if visitation is in the best interests of the child.

The courts should not lightly intrude on the family relationship against a fit parent’s wishes. Indeed, it is strongly presumed that a fit parent’s decisions are in the child’s best interests.

In Pinsky, the Second Department ruled that while the death of the children’s father provided the grandmother with automatic standing to seek visitation, the Family Court improvidently exercised its discretion in granting the petition. The evidence in the record established that visitation was not in the best interests of the children, an opinion shared by the attorney for the children. The grandmother’s petition was dismissed.

The Appellate Division, Third Department, in its April 25, 2013 decision in Hill v. Juhase, reversed an order of Broome County Family Court Judge Peter Charnetsky, and dismissed the grandmother’s petition for visitation.

In Hill, neither parent had died. The petitioner was the paternal grandmother of two minor children, Aiyanna (born in 2006) and Sierra (born in 2008). The petitioner’s son was the biological father of the younger child, but not the older child. However, the father had acknowledged paternity of the older child and had consented to be her father. He never married the children’s mother, although they lived together for a period of time. They eventually separated.

In March 2010, the Family Court granted custody of the children to the mother. In 2011, the paternal grandmother filed a Family Court petition for visitation. She complained that she was not getting sufficient visitation with the children when she traveled from her home in Maryland to New York every other month.

Prior to the hearing, the mother (representing herself) agreed to allow the grandmother to visit the children for the day (four to six hours) every other month in Broome County where they live, initially with the father present as a transition. the mother opposed the grandmother’s request to allow the children to be taken approximately one hour away to Oneonta, where the petitioner had relatives.

At the hearing, only the grandmother and the mother testified. The father was present, but did not testify or participate other than indicating to the Family Court his wish that the children have a relationship with both sides of their family.

Family Court Judge Charnetsky granted the petition and directed that petitioner would have visitation the first Saturday of every month for four consecutive months with the visits restricted to Broome County. The first two visits were to be in the presence of the father. Upon satisfactory compliance with those terms, the court directed that subsequent visits would be the first Saturday of every other month from 10:00 a.m. to 6:00 p.m. and with no restriction to Broome County, nor any requirement that the father be present.

On appeal by the mother, the Appellate Division, Third Department, reversed. The court held that where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation only where, as a threshold matter, they can establish circumstances in which “equity would see fit to intervene,” i.e., that equitable circumstances exist. Grandparents “must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one,” so that the court perceives that a court’s intervention is deserved. The grandparent’s “love and affection” is not enough.

Here, although the Family Court was accorded deference in determining the propriety of visitation, its determination did not have a sound basis in the record. Judge Charnetsky made no findings concerning “the nature and extent of the grandparent-grandchild relationship,” nor “the nature and basis of the parent’s objection to visitation.” Upon the appellate court’s review, it concluded that the grandmother did not establish equitable circumstances sufficient “to force the mother to accept visitation outside parameters within which she is comfortable as a fit and responsible parent.”

Judge Charnetsky had made no finding regarding the grandmother’s nurturing skills. The children’s attorney advocated against out-of-county visits and there was no evidence suggestive of the children’s wishes.

Courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one.

In Hill, the record reflected that the parents were fit and employed and that they continued to cooperatively share responsibilities for caring for the children in the mother’s home, assisted by the maternal grandmother. The petitioning paternal grandmother sporadically saw the children a few times per year for short visits in 2009, 2010 and 2011 on trips to New York, and one or two times when the mother or father drove to Maryland with the children and stayed overnight at petitioner’s house on their way to Virginia. The grandmother had never baby-sat, or visited alone with them, but did send or bring cards and gifts.

The Third Department found valid the mother’s objections to compelled overnight and out-of-town visitation. The “nature and extent of the existing [grandparent-grandchild] relationship” did not support the grandmother’s standing to seek relief. The mother had not frustrated the grandmother’s relationship with the children, and the grandmother had not demonstrated sufficient efforts to establish a relationship “by doing everything she could have reasonably done to cultivate a close relationship with the children.”

Notwithstanding the grandmother’s good intentions, she did not meet her threshold burden of demonstrating standing, i.e., that equitable circumstances existed to warrant court intervention. The petition was dismissed.

Nonetheless, given the passage of considerable time in which some visitation had reportedly been occurring, and during which the grandmother may now have developed a more meaningful relationship with the children, the appellate court encouraged the parties to reach an agreement to continue that relationship and to agree upon ongoing visitation, provided the mother deemed it beneficial to the children.

In Pinsky, the Mother was represented by Barry Abbott (now of Mayerson Abramowitz & Kahn, LLP) and Daniel B. Nottes, of Raoul Felder and Partners, P.C., of Manhattan. The grandmother was represented by Samuel J. Ferrara, Carolyn Reinach Wolf, and Hilary Casper of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, of Lake Success. Robert C. Mangi, Westbury, N.Y., was attorney for the children.

In Hill, the mother was represented by Victor B. Carrascoso, of Cooperstown. The grandmother was represented by Michelle Stone, of Vestal.

For an earlier blogpost on this subject, see Grandparent and Non-Parent Custody Requires Both Extraordinary Circumstances and the Best Interests of the Child

  • Peter Favaro

    You provide a very well rounded and clear summary of this case. The matter was very difficult for me to sort through, as the psychologist hired by the mother. I do not generally look to separating a child from any loving family, it is just that I am a bigger believer in concentrating on the immediate needs of the children which I felt were not adequately addressed. Thanks for providing the legal acumen in an easy to consume document.

    • neilcahn

      Ed. Note: For some 30 years, Dr. Favaro has served as a court evaluator in high conflict custody cases. he has made some 6,000 evaluations and provided services to more than five thousand families. His practice locations are on Long Island and in New York City.

  • Peter Favaro

    You provide a very well rounded and clear summary of this case. The matter was very difficult for me to sort through, as the psychologist hired by the mother. I do not generally look to separating a child from any loving family, it is just that I am a bigger believer in concentrating on the immediate needs of the children which I felt were not adequately addressed. Thanks for providing the legal acumen in an easy to consume document.